TED236

1. Appeal Of Adjudication Officer Decision No. ADJ-00034756, CA-00045776-002

BACKGROUND:

2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 10 February 2023 in accordance with Section 8 (1) of the Terms of Employment (Information) Acts, 1994 to 2014. A Labour Court hearing took place on 20 April 2023. The following is the Decision of the Court:

DETERMINATION:

Background

Mr. Gaughan, ‘the Complainant’, worked for CM Bard Tavern Limited, ‘the Respondent’ for two weeks, from 5 July 2021 to 18 July 2021.

Subsequently, the Complainant lodged a complaint with the Workplace Relations Commission, ‘WRC’, that he had not received a contract of employment, contrary to his rights under the Terms of Employment (Information) Acts 1994 to 2014, ‘the Acts’.

An Adjudication Officer, ‘AO’, decided that the complaint was well founded and awarded compensation under the Acts of €705.

The Respondent appealed to this Court.

The Court observed at the outset of the Court hearing that it was placed in difficulty in considering this matter as neither party complied with the requirement to adhere to Court procedures. The documentation submitted in advance by the Complainant could not, in any real sense, be regarded as a submission and the summary below is the Court’s attempt to capture what it believes was argued. The Respondent delayed provision of its submission until just days before the hearing.

The Court has endeavoured to make what it can of this unsatisfactory situation.

Summary of Respondent’s arguments

When the Complainant commenced employment, he was asked to provide PPS number, bank details and email details.

If he had done so, he would have received an electronic version of his contract. He did not do so until 25 July after he left the employment.

However, on 9 July, the Respondent’s Head Chef was asked to give the Complainant a hard copy of his contract and to get his signature on the document. The Complainant refused to sign it.

Summary of Complainant’s arguments

The Complainant did not receive a contract of employment and was not asked to sign one.

The applicable law

Terms of Employment (Information) Acts.

(1A) Without prejudice to subsection (1), an employer shall, not later than 5 days after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say:

(a) the full names of the employer and the employee;

(b) the address of the employer in the State or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act 2014);

(c) in the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires;

(d) the remuneration, including the initial basic amount, any other component elements, if applicable, indicated separately, the frequency and method of payment of the remuneration to which the employee is entitled and the pay reference period for the purposes of the National Minimum Wage Act 2000;

(e) the number of hours which the employer reasonably expects the employee to work—

(i) per normal working day, and

(ii) per normal working

Deliberation

There is a direct conflict of evidence and it is difficult for the Court to determine the truth.

However, it is a fact of law that there is an obligation on an employer to provide a statement to employees with the information set out above within five working days. There is no hard proof that this occurred. The owner of the Respondent, Mr. Carr, can say only that he asked the Head Chef to provide this document to the Complainant and to obtain his signature. The Head Chef was not available to give evidence to the Court.

It is a fact that the Complainant did not sign any document to indicate receipt within the required five days.

On that basis, the Court concludes that the terms of s.1(A) were not met.

The Court notes that the Respondent did not have a means of providing this documentation electronically as the Complainant failed to provided email details until he had left the employment.

The Court determines that the appropriate compensation for a breach of the Complainant’s rights is €150.

Determination

The Decision of the Adjudication Officer is varied.

	Signed on behalf of the Labour Court
	Tom Geraghty
OC	______________________
2 May 2023	Deputy Chairman